Citation Nr: 1021424
Decision Date: 06/09/10 Archive Date: 06/21/10
DOCKET NO. 07-35 011 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a bilateral knee
disability.
2. Entitlement to an extraschedular evaluation under 38
C.F.R. § 3.321(b)(1) for a lumbar spine disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. E. Costas, Counsel
INTRODUCTION
The Veteran served on active duty from March 1980 to June
1980 and from November 1990 to June 1991.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office in Little
Rock, Arkansas (RO), which denied the benefits sought on
appeal.
In October 2008, the Veteran presented testimony during a
videoconference hearing before the undersigned Acting
Veterans Law Judge.
In November 2008, the Board remanded the matter for
additional procedural and evidentiary development.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of entitlement to service connection for a
bilateral knee disability is addressed in the REMAND portion
of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In an April 2006 rating decision, the RO held that new
and material evidence had not been presented to reopen the
claim of entitlement to service connection for residuals of a
traumatic injury of the knees.
2. The evidence added to the record since the last final
decision in April 2006 is not cumulative and was not
previously considered by decision makers. The evidence is
also material because it raises a reasonable possibility of
substantiating the Veteran's claim of entitlement to service
connection for a bilateral knee disability.
3. The Veteran's lumbar spine disability does not, in and of
itself, result in frequent or excessive hospitalizations,
prevent gainful employment, or otherwise cause extraordinary
impairment.
CONCLUSIONS OF LAW
1. The April 2006 rating decision is final. 38 U.S.C.A. §§
7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a),
20.1103 (2009).
2. New and material evidence has been received to reopen a
claim of entitlement to service connection for a bilateral
knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156 (2009).
3. An increased rating on an extraschedular basis for a
lumbar spine disability is not warranted. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. § 3.321 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
In this decision, the Board reopens the Veteran's bilateral
knee disability claim and remands it for further development.
As such, no discussion of VA's duty to notify and assist is
not necessary as to this issue.
As to the Veteran's low back disability claim, the Board has
considered the Veterans Claims Assistance Act of 2000 (VCAA).
See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 and Supp. 2009). The regulations implementing
VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2009).
VA has a duty to notify the claimant of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16
Vet. App. 183 (2002). After having carefully reviewed the
record on appeal, the Board has concluded that the notice
requirements of VCAA have been satisfied with respect to the
issues decided.
In this case, the Veteran received pre-adjudication VCAA
notification in November 2006. Additional VCAA notification
was provided to the Veteran in May 2008 and March 2009. The
May 2008 letter informed the Veteran how to substantiate a
claim for an increased rating for a lumbar spine disability.
The March 2009 letter informed the Veteran that an
appropriate disability rating and effective date would be
assigned if his claims were granted. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). VA also advised that VA
used a published schedule for rating disabilities that
determined the rating assigned and that evidence considered
in determining the disability rating included the nature and
symptoms of the condition, the severity and duration of the
symptoms, and the impact of the condition and symptoms on
employment.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159. Here, an additional VA
examination was conducted in July 2009 and the matter was
referred to the Director Compensation and Pension in February
2010.
The Veteran has been given ample opportunity to present
evidence and argument in support of his claims. The Board
additionally finds that general due process considerations
have been complied with by VA, and the Veteran has had a
meaningful opportunity to participate in the development of
the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38
C.F.R. § 3.103 (2009).
New and Material Evidence
The Veteran seeks to reopen his claim of entitlement to
service connection for residuals of a traumatic injury of the
knees, previously denied by means of an August 1983 Board
decision and numerous RO rating actions, most recently in
April 2006. Having carefully considered the evidence in
light of the applicable law, the Board finds that new and
material evidence has been submitted to reopen the claim of
entitlement to service connection for a bilateral knee
disability.
In an August 1983 decision, the Board denied service
connection for residuals of a traumatic injury of the knees.
At that time, the medical evidence of record included the
Veteran's service treatment records pertaining to his period
of active duty for training from March 1980 to June 1980, a
February 1982 VA examination report and December 1982 RO
testimony. The Veteran stated that he injured his knees
during service while moving steel lockers one slid and down
stairs and hit him on the legs and knees. Service treatment
records from the Veteran's first period of service
demonstrate a single complaint of left knee pain in May 1980.
The February 1982 VA examination report indicated that the
knees exhibited full range motion and X-rays of the knees
were unremarkable. Upon physical examination, there was
slight full feeling of the joint lines of knees and some
popping on active and passive motion of both knees. There
was no tenderness, Drawer sign was negative and ligaments
were stable. The Board reasoned that service connection was
not warranted because there was no evidence that the Veteran
acquired a chronic knee disability during his period of
service. The Board's August 1983 decision denying service
connection for residuals of a traumatic injury of the knees
is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §
20.1100 (2009).
In a December 1983 rating decision, the RO denied service
connection for residuals of a traumatic injury of the knees.
The additional evidence consisted of lay statements from the
Veteran and a fellow serviceman and a copy of a pay voucher.
Both the lay statements alleged that a locker fell down the
stairs and injured the Veteran's legs and knees. The pay
voucher shows that the Veteran was considered incapacitated
for duties from September 12, 1980, to October 24, 1980; it
did not specify for what reason the Veteran had been
considered incapacitated for duties. The Veteran was
notified of the December 1983 rating decision, but did not
file a notice of disagreement; thus, the determination became
final. 38 U.S.C.A. § 7105.
In a December 1992 decision, the RO denied service connection
for residuals of a traumatic injury of the knees. In May
1993, the RO confirmed and continued the December 1992 rating
decision. The Veteran alleged that he injured his knees when
he was thrown into an iron bar when his vehicle went over an
embankment. In September 1993, the Veteran testified that he
had not experienced knee pain, since he injured his back
while stationed in the Persian Gulf. The Veteran indicated
that he had been working construction since the age of 18. A
review of the service treatment records reveals that the
Veteran denied any problems with his knees upon discharge
examination from his second period of service, dated in April
1991. Moreover, clinical evaluation of the lower extremities
was within normal limits. Upon VA examination dated in
October 1991, range of motion was normal and stability was
characterized as "good," bilaterally. There was, however,
slight tenderness of the medial joint line of the right knee.
The Veteran was diagnosed as having a bilateral knee strain.
Service connection was denied for residuals of a traumatic
injury of the knees because there was no evidence of
complaints of, treatment for, or diagnosis of an injury or
disease of knees during service. The Veteran filed a notice
of disagreement and perfected his appeal; however, he
withdrew his appeal during his September 1993 hearing. Thus,
the February 1992 RO decision is final. 38 U.S.C.A. § 7105.
The Veteran attempted to reopen his claim in March 2004. In
support of his claim, the Veteran submitted lay statements
alleging that he injured his knees while moving lockers
during his first period of service and during his second
period of service when he was knocked backwards when his
vehicle went over an embankment. The additional evidence of
record included VA treatment records dated from 2003 to 2004.
In July 2004, the RO held that new and material evidence had
not been presented the reopen the claim of entitlement to
service connection for residuals of a traumatic injury of the
knees because there was no evidence that demonstrated any
current knee disability was attributable or related to
service. Although the Veteran filed a notice of
disagreement, he did not perfect his appeal in a timely
manner. Thus, the July 2004 RO decision is final. 38
U.S.C.A. § 7105.
The Veteran again attempted to reopen his claim in November
2005. No additional medical evidence was associated with the
claims file. Accordingly, in an April 2006 decision, the RO
held that new and material evidence had not been presented to
reopen the matter of entitlement to service connection for
residuals of a traumatic injury of the knees. The Veteran
did not file a notice of disagreement; thus the April 2006 RO
decision is final. 38 U.S.C.A. § 7105.
The current claim on appeal was received in August 2006. The
Board notes that if new and material evidence is presented or
secured with respect to a claim that has been disallowed the
Secretary shall reopen the claim and review the former
disposition of the claim. 38 U.S.C.A. § 5108; Manio v.
Derwinski, 1 Vet. App. 140, 145 (1991).
In general, a final decision cannot be reopened unless new
and material evidence is presented. Pursuant to 38 U.S.C.A.
§ 5108, VA must reopen a finally disallowed claim when "new
and material" evidence is presented or secured with respect
to that claim. When an RO determines that new and material
evidence has not been presented sufficient to reopen a claim,
such determination is not binding on the Board; regardless of
any prior RO decision, the Board must decide whether evidence
has been received that is both new and material before
reopening the claim. 38 U.S.C.A. § 5108; 38 C.F.R. §
3.156(a); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir.
2001).
"New" evidence means existing evidence not previously
submitted to agency decisionmakers. "Material" evidence
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an
unsubstantiated fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the prior
final denial of the claim sought to be reopened, and must
raise a reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156. In determining whether evidence is new
and material, the credibility of the evidence, although not
its weight, is to be presumed. Justus v. Principi, 3 Vet.
App. 510, 513 (1992).
Additional evidence received since the April 2006 rating
decision consists of VA treatment records, Social Security
Administration records and lay statements. In September
2007, the Veteran submitted that his treatment provider Dr.
K. had alleged that his knee disabilities were attributable
to his service-connected back disability. The Veteran also
testified in October 2008, that he had been told that his
current knee disabilities could be attributable to an altered
gait that resulted form his service-connected back
disability. The Veteran was afforded Social Security
Administration benefits because of orthopedic and
psychological disabilities. A review of VA treatment records
demonstrates that the Veteran ambulates with an altered gait.
An orthopedic consultation dated in May 2006, revealed mild
to moderate left knee degenerative changes, probably
minimally symptomatic. X-rays of the left knee dated in
April 2007 demonstrated minimal spurring along the medial
aspect of the proximal tibia. There was no evidence of joint
effusion. This evidence is relevant because it suggests that
the Veteran's current knee disabilities may be attributable
to his service-connected lumbar spine disability. It
therefore raises a reasonable possibility of substantiating
the claim and is material within the meaning of 38 C.F.R. §
3.156(a). Accordingly, the Board finds that new and material
evidence has been submitted to reopen the Veteran's claim.
To this extent only, the benefit sought on appeal is granted.
Extraschedular Evaluation
The Veteran seeks an increased rating, in excess of 20
percent, for his residuals, lumbar spine injury. The Board
has already considered, within a November 2008 decision and
remand, the issue of entitlement to an increased rating on a
schedular basis for the Veteran's lumbar spine. Therefore,
the only issue remaining on appeal is entitlement to an
extraschedular rating for residuals of a lumbar spine injury.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
Part 4 (2009). To accord justice in an exceptional case
where the schedular standards are found to be inadequate, VA
is authorized to refer exceptional cases to the Chief
Benefits Director or the Director, Compensation and Pension
Service for consideration of an extraschedular evaluation
commensurate with the average earning capacity impairment.
38 C.F.R. § 3.321(b)(1) (2009).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
such related factors as marked interference with employment
or frequent periods of hospitalization as to render
impractical the application of regular schedular standards.
Id. The Court has held that the Board is precluded by
regulation from assigning an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance; however, the
Board is not precluded from raising this question, and in
fact is obligated to liberally read all documents and oral
testimony of record and identify all potential theories of
entitlement to a benefit under the law and regulations.
Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further
held that the Board must address referral under 38 C.F.R. §
3.321(b)(1) only where circumstances are presented which the
Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
In this case, the Board concluded in its November 2008 remand
that the circumstances of the Veteran's case at least raise
the possibility of entitlement to an extraschedular rating,
such that referral was warranted to the Chief Benefits
Director or the Director, Compensation and Pension Service
for consideration of such an evaluation. The Board also
ordered a new VA examination be afforded the Veteran to
expand the evidentiary record.
In July 2007, the Social Security Administration records held
that based upon the Veteran's residual functional capacity
and vocational factors, there were no jobs in significant
numbers that he could perform. This finding was based on
examination reports indicating that the Veteran had a
residual functional capacity to perform sedentary work, at
most, due to his orthopedic and psychological disabilities.
In October 2008, the Veteran testified before the undersigned
Veterans Law Judge. He stated that his lumbar spine
disability resulted in significant restrictions in his daily
activities and rendered him unemployable because he could not
lift more than 10 pounds.
Another VA orthopedic examination was afforded the Veteran in
July 2009. Forward flexion was limited, at most, to 50
degrees. Extension was to 15 degrees. Right lateral flexion
was to 20 degrees and left lateral flexion was to 30 degrees.
Rotation to the right was to 15 degrees and rotation to the
left was to 20 degrees. There was no additional limitation
of motion with repetitive testing and there was no evidence
of weakness or tenderness. Muscular development was
symmetrical and robust in the lower extremities.
Neurological evaluation was normal, without numbness. He
denied any incapacitating episodes in the past 12 months.
The Veteran was diagnosed as having a chronic lumbar sprain
with minimal degenerative disc disease and spasm. The
examiner opined that from an orthopedic standpoint, he could
see no reason as to why the Veteran could not maintain
sedentary employment. He characterized the Veteran's degree
of functional loss as moderate and indicated that it was not
of such severity such that it would preclude the Veteran from
securing and maintaining substantially gainful employment.
The examiner noted that the Veteran's functional impairment
was primarily with bending and lifting; the Veteran could
walk normally. He based his opinions on the Veteran's
mobility, physical examination, X-rays, MRI findings, the
Veteran's history and a review of the claims file.
The claims file was then forwarded to the Director of VA's
Compensation and Pension Service, who prepared a February
2010 memorandum denying the Veteran an extraschedular rating.
On review, the Director noted that the Veteran had several
non-service-connected disorders, such as degenerative joint
disease of the knees, status post right knee meniscal tear in
2003, gout, trochanteric bursitis, plantar fasciitis,
depression, headaches, hearing loss, hypertension, benign
prostatic hypertrophy, diverticulosis, gastroesophageal
reflux disease and acute pancreatitis. He noted that the
Veteran stopped working in 2003; during that year, a meniscal
tear required repair and he was hospitalized for acute
pancreatitis. Further, Social Security Administration
records indicate that he was awarded benefits due to non-
service-connected disorders. After considering the totality
of the record, the Director found no evidence the Veteran's
lumbar spine disability, in and of itself, prevented him from
securing gainful employment, and concluded an extraschedular
rating was not warranted for this disability.
For this same reason, the Board finds no basis to overturn
the Director's determination regarding entitlement to an
extraschedular rating. The Veteran was able to work for many
years following service, until 2003, despite his lumbar spine
disability. While the medical evidence confirms he has
remained unemployable since that time, no competent medical
expert has suggested this is solely due to his service-
connected lumbar spine disability. As noted, the Veteran
multiple physical ailments for which service connection is
not in effect. Overall, the preponderance of the evidence is
against a finding that the Veteran's lumbar spine disability,
in and of itself, results in such factors as marked
interference with employment or frequent periods of
hospitalization, and the Director's denial of an
extraschedular disability rating under 38 C.F.R. § 3.321 is
thus confirmed.
In sum, the Board agrees with the conclusion of the Director,
Compensation and Pension Service as the Veteran's lumbar
spine disability does not result in excessive
hospitalization, unemployability, or other unusual
circumstances to warrant such a rating, and thus the rating
criteria are adequate to evaluate the condition. As a
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002).
ORDER
New and material evidence having been submitted, the
application to reopen a claim for service connection for a
bilateral knee disability is granted; to this extent only,
the appeal is granted.
Entitlement to an extraschedular evaluation for the lumbar
spine disability is denied.
REMAND
The Veteran has submitted various theories of entitlement for
his claim for service connection for residuals of a traumatic
injury of the knees. He reports that he sustained an injury
to his knees during his first period of service when a locker
slid down some stairs and knocked into him. Service
treatment records from the Veteran's first period of service
demonstrated a single complaint of left knee pain in May
1980. The Veteran also alleges that he injured his knees
during his second period of service when his vehicle abruptly
went over an embankment. Four months after the Veteran's
discharge from his second period of service, upon VA
examination dated in October 1991, he was diagnosed as having
a bilateral knee strain. Finally, the Veteran asserts that
his current bilateral knee disability may be attributable to
his service-connected lumbar spine disability. Service
connection is currently in effect for residuals of a lumbar
spine injury with degenerative joint disease and degenerative
disc disease, right leg mild incomplete paralysis of the
sciatic nerve and left leg mild incomplete paralysis of the
sciatic nerve.
VA has a duty to assist Veterans to obtain evidence needed to
substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. §
3.159. In light of the foregoing, the Board finds that the
Veteran must be afforded a VA examination to determine
whether he has a knee disability that is related to or had
its onset in service.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be afforded an
appropriate VA examination to ascertain
the nature and etiology of any currently
right or left knee disability found to be
present. The claims folder should be
made available and reviewed by the
examiner. Any testing should also be
conducted at that time if deemed
necessary by the examiner and the results
of any testing done should be included
with the findings from the VA
examination.
In particular, the examiner is asked to
opine as to whether any right or left
knee disorder is at least as likely as
not related to service or to a service-
connected disability, in particular the
Veteran's lumbar spine disability. The
examiner must also state whether the
Veteran reports a continuity of knee
symptomatology since service and
acknowledge such statements made by the
Veteran, if any, in offering the opinion.
The examiner must provide a complete
rationale for any stated opinion.
2. Then the RO should readjudicate the
appeal. If the benefit sought on appeal
remains denied, the Veteran and his
representative should be provided a
supplemental statement of the case. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs